FISA amendments bill passes Senate, President likely to sign

The compromise legislation will enable a court to decide on a case-by-case basis whether telcos that cooperated with the US government will be granted immunity from prosecution. Prominent Democrats were among those voting for the compromise.

By a final vote of 69 - 28, with three senators not voting, the FISA Amendments Act of 2008 passed the US Senate yesterday afternoon. With all three major amendments offered to the bill having been soundly defeated, the provision enabling a FISA court to grant immunity from prosecution to telecommunications companies that may have participated in surveillance activities in the wake of 9/11, remained intact.

No Republicans voted against the bill, though Sens. Jefferson Sessions (R - Alas.) and John McCain (R - Ariz.) were not present to vote. Earlier, Sen. McCain -- the presumptive US Republican presidential nominee -- urged the bill's passage. Although Sen. Arlen Specter (R - Penn.) had offered an amendment that would have limited immunity grants to situations where such grants were found to be constitutional, and that amendment was among those defeated, he also voted aye.

Democrats voting against the bill were led by Sens. Russ Feingold (D - Wisc.) and Chris Dodd (D - Ct.), who had proposed an amendment that would have simply stricken the language dealing with immunity grants. They were joined most notably by Sens. Patrick Leahy (D - Vt.) and Joseph Biden (D - Del.).

But among the notable Democrats voting aye were Sen. McCain's opponent, Sen. Barack Obama (D - Ill.), along with Dianne Feinstein (D - Calif.), Daniel Inouye (D - Hawaii), Evan Bayh (D - Ind.), Mary Landrieu (D - La.), Barbara Mikulski (D - Md.), Claire McCaskill (D - Mo.), Sheldon Whitehouse (D - R.I.), Jim Webb (D - Va.), and Jay Rockefeller (D - W.V.). Many of those names have been listed among Obama supporters who may be considered potential running-mates, particularly Feinstein, Bayh, McCaskill, and Webb.

In a statement issued just after the vote, President Bush expressed his support for Congress, stating he plans to sign the measure into law.

"This bill will help our intelligence professionals learn who the terrorists are talking to, what they're saying, and what they're planning," Mr. Bush said. "It will ensure that those companies whose assistance is necessary to protect the country will, themselves, be protected from lawsuits for past or future cooperation with the government. It will uphold our most solemn obligation as officials of the federal government to protect the American people."

Speaking on the floor of the Senate yesterday prior to the vote, Sen. Feingold lamented what was looking to be inevitable by that time, while presenting a "rogue's gallery" of arguments over the past few years made on behalf of the President's power to authorize warrantless wiretaps.

Among them was this, according to Feingold's prepared remarks: "Senators have also dragged out the same old tired arguments about the President's supposed inherent executive authority to violate FISA. They argue that a law passed by Congress can't trump the President's power under the Constitution. That argument may sound good, but it assumes what it is trying to prove: that the Constitution gives the President the power to authorize warrantless wiretaps in certain cases. You can't simply say that any claim of executive power prevails over a statute -- at least, not if you are serious about the rule of law, and about how to interpret the Constitution. The real question is, when a claim of executive power and a statute arguably conflict, how do you resolve that conflict?"

Feingold suggested the answer: that the Supreme Court has the authority to determine whether the President acted in violation of a criminal statute. He argued that Congress should not presume to sidestep that judicial authority.

In his own comments, Sen. Leahy noted that not all telcos complied with the President's request, with one basing its objections on legal principle. "There are public reports that at least one telecommunications carrier refused to comply with the administration's request to cooperate with the warrantless wiretapping," Leahy said. "Surely that objection raised a red flag for all involved. It is clear that the administration did not want the Senate to evaluate the evidence and draw its own conclusions. Again, it sought to avoid accountability."

But Sen. Rockefeller said he felt the compromise was necessary in order to forge a new working relationship between the intelligence community and legislators.

"We have crafted historic legislation that will change the face of electronic surveillance for the future," reads a statement from Rockefeller's office. "And in producing this carefully crafted compromise, we have achieved another important goal that has been lost in recent years. We have created a program that has earned the broad support of Congress, the Intelligence Community, and the Executive and Judicial Branches, giving our intelligence officials the confidence they deserve in carrying out their responsibilities to protect American lives."